Band 7, Heft 2

This paper clarifies the role and position of the Head of State from a comparative perspective, as well as the protection of that institution from an extra constitutional dis­missal via constitutional amendment. Its starting point was the exercise by the Constitu­tional Court of Kosovo of abstract preventive control of eleven (11) proposed constitu­tional amendments. The Court declared unconstitutional over sixty (60) per cent of them, including amendment ten (10), the major subject of this paper. In this case, the Court made it clear that the early termination of the mandate of the Head of State undertaken through the enactment of a new constitutional amendment was unconstitutional. Ulti­mately, the paper demonstrates that no serious and professional court would ever take into account arguments ad hominem in cases dealing with abstract review of constitutionality of laws and constitutional amendments.

This paper compares the freedom of communication in the jurisprudence of the Supreme Court of the United States and the European Court of Human Rights, departing from the judgments of the Supreme Court of the United States. It is noted that there are differences, as specified herein. Regulatory texts invite to speak of two distinct models, though this may be a far-fetched statement. This paper makes the following concluding remarks: 1) There are many concepts of freedom of expression that are compatible with democracy; the one derived from the Sullivan Judgment in the US (and in Europe from the Lingens Judgment) is not the only one, although it is currently considered the most consist­ent with democracy. This point is not discussed here. 2) Major changes sometimes occur through seemingly small details. In this sense, the shift of the burden of proof in defama­tion cases (Sullivan) has created an earthquake in the legal regime governing the press. The Sullivan doctrine can be summarized as follows: first, errors are inevitable, as freedom of speech requires ‘breathing room’; second, the malice of those accused of defamation must be proven; third, it is necessary to prove the lack of veracity of the slanderer. This doctrine allows the press to play its role as the watchdog of freedom. 3) In Spain, the press also appears to play this role, thus requiring us to ask whether there is, or ever was, a Sullivan Judgment in Spanish jurisprudence. We tend to attribute the privileged position of the press in Spain to the fact that the Constitutional Court has given preferential consid­eration to freedom of speech when it is in conflict with honor, intimacy and self-image privacy. This preference is justified by its connection to democracy. Since the judgment of the Spanish Constitutional Court (STC hereafter) 6/1981 of 16 March, the Spanish Consti­tutional Court has stressed the importance of freedom of information for democracy, and since the STC 159/1986 of 16 December, the Constitutional Court has suggested the pref­erential position of freedom of expression. However, the incorporation of the Sullivan doc­trine into the Spanish system occurred through STC 6/1988 of 21 January, almost ten years after the passage of the Constitution into law.

This article investigates recent developments in Spain’s anti-terrorism regime, in particular the 2002 Law on Political Parties which introduced a non-criminal procedure to outlaw political parties. The 2002 Law was adopted as a response to the continuing exist­ence of political violence associated with terrorist group ETA. It therefore constitutes part of the national counterterrorism regime. This article argues that the 2002 Law was a leg­islative novelty and that its immediate application to ban the political party Batasuna brought about substantial changes to the existing system of constitutional protection of political freedoms, as well as modifying the established standards of constitutional review of anti-terrorism legislation. Furthermore, the result of the November 2011 Spanish parlia­mentary elections has brought questions on the effectiveness of the 2002 Law and its pos­sible future application to the fore of political and legal discourse. The article concludes that the outcome of the 2002 Law on Political Parties is rather disappointing and suggests that there are lessons other democracies can learn both for their counterterrorism policies and treatment of political parties.

Egypt is going through the early phases of the throes of democratization. Right after the Revolution in 2011, which ended thirty years of repression and dictatorship under the regime of ex-president Hosni Mubarak, Egyptians found themselves with the serious challenge of electing a new president and building a new Egypt; in particular by drafting a new constitution capable of building lasting stability, maintaining equality, and offering op­portunities for betterment. However, the newly drafted constitution has failed Egyptians’ ambitions regarding the establishment of democratic governance and preserving human rights, freedoms, and Egypt’s moderate secular nature.

This article tends to give an insight on the historical and institutional develop­ment of the Constitutional Court of Albania, on the need of the society and the historical changes that led to its creation. It focuses especially on the role and competences of this Court on the protection of the rule of law, of the constitutional principles, on the balancing and division of powers, on the protection of the fundamental rights and freedoms of individuals. Its aim is to provide overall information on the functioning and standards it follows. It is based on the jurisprudence of this Court during the years and is enriched by its deci­sions on particular subjects and compares this Court to other similar ones in Eastern Euro­pean countries. The article is mainly directed to scholars and legal writers whose aim is to compare the organization and functioning of the Constitutional Court of Albania to other similar courts.